*1 HILL, Cirсuit Before MORGAN and NOEL, Judge.* District Senior Judges, and Texas, by designation. sitting Judge * Senior District District Southern *2 648 16, 1975, Judge. ber R.
NOEL, William Senior District BUTIGAN or- glassware, dered suitable for use in a from appeals Andrew Jackson laboratory. chemical He also ordered conspiring to manufac- conviction for his Pheynyl-2-Propanoe Methlyamine. of 21 in violation methamphetamine ture 20, 1975, On October William R. BUTI- prin- 841(a)(1) and 846. The two U.S.C. §§ picked up Phenyl-2-Pro- GAN order seeks cipal upon which Robertson grounds1 panoe and Methlyamine and a ordered are that dis- his conviction reversal of quantity of Mercuric Chloride. Affiant evi- erroneously admitted into trict court employed by hаs contacted a chemist pursuant to the fruits of a search (1) dence: (2) Drug warrant and certain Enforcement search Administration who an invalid by Robertson admissions made told Affiant that the Phenyl-2- chemicals appellant, a of a discussion between Propanoe, Methlyamine, course and Mercuric Drug two Enforсement co-conspirator, and precursors Chloride are used in manu- (DEA) agents, which Rob- Administration methamphetamine. facture of While I do bargaining. characterizes as ertson not desire to name this informant reasons,
security he ais business inman I. Warrant Search Paso, El Texas who has never been ar- rested аnd who a enjoys good reputation 16, 1975, agents DEA
On December community in which he resides. a executed a search warrant at residence in Paso, search, In the course of the El Texas. Affiant has received further information agents various chemicals and lab seized a person whom he knows to be oratоry equipment preparation used in reliable, credible, and trustworthy who methamphetamine. and manufacture related that R. William BUTIGAN ais Robertson, co-conspirator Appellant chemist for a clandestine laboratory lo- wife, Butigan, Butigan’s R. named William at cated at residence 4537 Emerson at and another female were arrested The laboratory portable Road. is of a at the time of the search. residence anywhere nature and could be stored on argues that the search warrant curtilage on the above-described was invalid because the affidavit submitted premises, including a silver Cadillac аuto- support tips thereof relies on two parked mobile on the premises and a ga- informants, but unnamed fails to meet rage premises. located on the Informant Aguilar-Spinelli2 establishing criteria of received this past information within the through tips. probable cause informants’ 48 hours. While I not do desire to name urges that the affi- Specifically, provided informant this informa- probable davit is insufficient establish security reasons, tion for I believe this cause because the affidavit does not tell reliable, credible, informant one of the two informants obtained his how trustworthy because he given has infor- information. This contention is withоut on mation numerous in the past occasions merit. concerning narcotics offenses committed The affidavit states: by Texas, County, individuals in El Paso and on each every has from a occasion his infor- Affiant received information true, reliable, reliable, proven whom he knows to be mation has to be crеdible, and Octo- trustworthy, and correct. Appellant conspiracy alleged also asserts trial court in the indictment. We by (1) giving cautionary points erred: instruc- find these of error to be without merit hearsay concerning worthy tion certain statements and and not of discussion. co-conspirator declarations made alleged conspiracy States, time when the Spinelli 410, v. United 393 U.S. 89 terminated, (2) holding 584, had the evidence (1969), Aguilar S.Ct. 21 L.Ed.2d Texas, be sufficient to sustain the conviction be- S.Ct. L.Ed.2d prove cause the evidence insufficient (1964). Appellant is on information other three attack arrestees
Robertson’s informant referred the second were warnings administered Miranda3 supplied Agent this affidavit. DEA private to in Widener at the resi- in El dence Paso where they arrested. the affiant did assertion that Appellant’s The four arrestees were taken then to the informant received tell this second how *3 offices DEA in El Paso for processing. As clandestine labо- about the the information agents preparing to take the ar- well-taken, that does not end ratory is restees to the United States Courthouse for has held that This Court inquiry. our arraignment, Butigan on his own initiative about information insufficient [w]here was willing indicated that he to tell every- is available to tipster and the tip thing but first he wanted to talk to Robert- alone, investigat- upon it justify reliance arresting agents son. One on cross- may tip by ing supplement officers examination testified as concerning follows subject corrobora- surveillance Butigan’s request: tip key elements of tion of objective sources. relatively Q And then what Butigan Mr. did tell you time, particular at that sir? Brennan, 711, v. 538 F.2d United States Here, A 1976). tip Initially? of the second (5th Cir. Butigan that to the effect Yes,
informant
Q
sir.
laboratory
clandestine
located
chemist
A He
that he
said
wanted to cooperate
by
anoth-
corroborated
at his residence
and tell
everything,
us
reason
informant,
in the commu-
a businessman
er
wanted
if it
this he
to know
would
description
gave
detailed
nity, who
help his wife out.
by Bu-
equipment purchased
chemicals and
Q Okay.
him,
So what
you
tell
sir?
Furthermore,
chemist
government
tigan.
I
that I
promise
A told him
couldn’t
him
were the sort
chemicals
confirmed
anything, but that we were anxious
drug.
an
manufacture of
illicit
used in the
cooperate
him
have
with us and
reliability of
second
We find
any cooperation
he made would
cor-
sufficiently
established
tip was
help him
in the
probably
long
out
run.
by the
supplied
information
roborating
Q Okay. Did he do this voluntarily, sir?
chemist.
businessman
he bring
up
I mean did
himself?
observed,
cause
probable
weAs
have
“[a]
Yes, sir, we werе on
route
A
our
to take
ever,
with
be
rarely,
can
resolved
issue
him
Magistrate
to the
when he
of an Euclidean theorem.”
logic
the exact
brought—
Chester,
173,
v.
United States
537 F.2d
Q
getting ready
You were
to take him
1976).
the affi-
(5th
We conclude that
Cir.
Magistrate,
to the
and he
you
tells
infor-
contained sufficient
a whole
davit
would like
vоluntarily
he
to co-
magistrate
to find
enable the
mation to
operate
try
help
in order to
cause. See id.
probable
wife, is that correct?
Bargain” Discussion
II. “Plea
Yes,
A
sir.
contends that a conversa
him,
course,
Q
you
you
And
told
himself, co-conspirator Buti
tion between
promise
anything,
couldn’t
him
is that
DEA
constitutеd
gan, and two
you
more or less what
told him?
and therefore certain admissions
Yes,
A
sir.
during the course of
Now,
Q
Butigan
did Mr.
seem concerned
have been exclud
should
that conversation
wife?
about his
410, Fed.
under Fed.R.Ev.
ed from evidence
Yes,
A
sir.
United
v.
States
11(e)(6),
R.Crim.P.
thing
Q
hap-
What was the next
1974).
To as
F.2d
Butigan
pened
regard
coop-
to Mr.
contention,
must
the conversation
sess
erating?
proper
set
context.
(1966).
Arizona,
was instead NASH, Jr., Ira Petitioner-Appellee, Yet, do I read nowhere person.” third according the rule language qualifies ESTELLE, Director, W. J. Texas оffering person to the motives Department Corrections, Thus, person is offer- whether plead. Respondent-Appellant. to be tried guilty in order ing plead No. 75-3772. a third gain leniency for or to lesser crime analyzing importance is of no United States Court of Appeals, plead Rather, an offer to oncе Rule 11. Fifth Circuit. withdrawn, whatever the motives guilty is Oct. offer, prohibits the use Rule 11 Rehearing En Banc Granted of any statement against defendant 15,1977. Dec. with that offer. Of' made in connection course, that no offer to one could contend in this case. While
plead guilty was made made no such that defendant is true offer, interprе- reasonable
explicit only to his one can attach offer
tation that everything” if the Government would
“tell on his wife this statement
go easy is plead guilty. Ac-
was in effect an offer 11(e)(6) would prevent Rule
cordingly, statements against
use Therefore, offer.
during the course of this reasons, I dissent.
for the above PETITION
ON FOR REHEARING PETITION FOR REHEAR-
AND
ING EN BANC BROWN, Judge,
Before Chief THORN-
BERRY, COLEMAN, GOLDBERG, AINS-
WORTH, GODBOLD, MORGAN, CLARK, GEE, TJOFLAT, FAY,
RONEY, HILL,
RUBIN, Judges. Circuit
BY THE COURT:
A member of the in active Court service requested a on the
having poll application en rehearing majority banc and in active
judges having service voted rehearing banc,
favor en granting ORDERED be
IT cause shall IS by the en banc oral
reheard Court
argument on a date hereafterto fixed. will specify briefing Clerk schedule filing supplemental briefs. with, made in connection and relevant offer to
ments аn or nolo offers, to, pleas any foregoing is not contendere to the crime proceeding proceeding civil or criminal crime is admissible admissible a criminal against perjury or false statement state- However, oath, offer. evidence of a statement ment was made under with, to, record, presence in connection and relevant on the of counsel. withdrawn, plea of later